Scottish Court of Session Decisions

This was an action of divorce on the ground of adultery. The pursuer Louise Bader, by birth a Frenchwoman, was married to the defender Titus D'Ernesti, an Austrian, in London, on the 26th May 1874. The defender had left Austria several years before his marriage, but without, as the pursuer averred, having acquired a permanent home anywhere else. He was a teacher of music, and in pursuit of his avocation travelled to various Continental cities, always living, according to the pursuer, in hotels. He averred that since 1867 he had had his ordinary residence in Paris. After the marriage the spouses went to Paris, where they lived with the pursuer's brother, the defender, according to the pursuer's statement, doing no useful work, but spending her money in gambling and debauchery. From August 1876 to June 1877 they resided in Aberdeen, where the defender had obtained a situation as teacher of music in a school. They then returned to Paris. In the end of 1878, differences having arisen between the parties, they separated, and did not thereafter live together. In August 1879 the defender returned to Aberdeen, and remained there till June 1880, returning from Paris, to which he had gone, in the following August. He finally left Aberdeen in June 1881 for Paris, where he had since resided. At the date of the action the pursuer was living in Aberdeen. The defender was cited personally in Paris. No children were born of the marriage.

The wife had some fortune of her own, but the husband had no means, and at the time of the marriage his debts had been paid by his wife.

It was when the defender was staying at Aberdeen that the adultery upon which this action was founded was alleged to have been committed.

The defender, besides denying the averments of adultery, pleaded—“(1) No jurisdiction. (2) Forum non competens.”

The pursuer, with reference to these pleas-in-law, “explained, that in the eye of the French law the defender is an Austrian subject, and that the pursuer by her marriage with him, which took place in a foreign country, viz. England, has lost her right as a Frenchwoman, and that consequently the French Courts would not listen to an action for separation or divorce at the pursuer's instance. Further explained, that the marriage not having been registered in Austria, the pursuer could obtain no remedy in an Austrian Court.”

The case was at first sent to proof as an undefended cause, but the defender subsequently

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tendered defences. Before the record was closed the Lord Ordinary ( Fraser) appointed the defender to sist a mandatory. In doing so his Lordship delivered this opinion:—“The rule requiring the pursuer of an action in the Scottish Courts who is resident in England to sist a mandatory has been modified, in consequence of ‘The Judgments Extension Act 1868,’ to the effect ‘that as a Scotch decree for expenses can now be enforced in any part of the United Kingdom, the Court will always deem it to be an important consideration in judging of the question whether or not a mandatory is to be sisted, that the party who is called upon to sist is resident in the United Kingdom, and unless there are other circumstances in the case requiring that a mandatory should be sisted, will refuse the motion’ ( Lawson's Trustees v. British Linen Company, 20th June 1874, 1 R. 1065).

In England, before the statute passed, a Scotsman who was suing in an English Court required to give security for costs. But this rule was held, in consequence of the provisions in ‘The Judgments Extension Act 1868,’ to be abolished ( Raeburn v. Andrews, 27th January 1874, L.R. 9 Q.B. 118), thus going further than the Scotch Courts have done, who reserve to themselves the right in special cases to order a mandatory to be sisted.

But no further relaxation of the law as to the sisting of mandatories has been made so as to entitle a person residing out of Scotland, but not within the United Kingdom, to appear as pursuer or defender in an action in the Scottish Courts. The defender in this case is resident in France, and he claims exemption from the rule on the ground—first, that he is a defender in the cause; secondly, that he is a defender in a divorce suit; and thirdly, that he objects to the jurisdiction of the Court over him. Now, all these points have been made the matter of express decision. In the case of Tingman v. Tingman (2d December 1854, 17 D. 122) a husband, the defender in a divorce case, was appointed to sist a mandatory. The case was reported by Lord Deas to the Second Division, with a statement of his own opinion that a mandatory must be sisted, bringing under the notice of the Court at the same time the prior decisions. With reference to the alleged peculiarity of divorce cases Lord Wood observed—‘I think the view taken by Lord Deas is the sound one. If I could see grounds for a distinction in favour of a party defending in an action of divorce, that might alter the case, but any distinction seems to me to be exactly the other way. I know no class of cases where it is more proper that a mandatory should be sisted than that to which the present one belongs—a wife suing for a divorce against a husband who chooses pendente processu to leave the country.’

Then, with regard to the plea of no jurisdiction, the point has also been expressly determined in Ranken v. Nolan (26th February 1842, 4 D. 832) and Grant v. Pedie (30th November 1825, 4 S. 237). These certainly were not cases of divorce, but they were cases where the defender objected to the jurisdiction of the Court. Lord Fullarton in the case of Ranken expressed himself as follows:—‘I confess I always thought that it was going far to require a defender resident abroad to sist a mandatory. But that is the settled rule, and there is no distinction as to the nature of the pleas which he may urge. He is not allowed to appear to state them without a mandatory; he is not entitled to require a judgment of any kind. The cases are very strong. In Pedie the House of Lords found that this Court had no jurisdiction, but the party was not allowed even to get their judgment applied without sisting a mandatory.’

There are weighty grounds of expediency and justice in requiring that a husband called as defender in an action of divorce, who is resident in a foreign country, shall be made to sist a mandatory before he shall be heard in his defence. He is not obliged in such an action in initio litis to contribute anything to assist the wife in the carrying on of her action. It is only after she has led a semiplena probatio that she can ask that an order should be made upon her husband to contribute to the costs of suit. It is different where she is the defender. In that case she is entitled to demand that her expenses of litigation shall be paid as the suit progresses. When pursuer, therefore, she is at great disadvantage, and certainly she would be in a very helpless case if the defender, her husband, were in such an action resident abroad, and held entitled to oppose her without sisting a mandatory. Destitute of means, as the pursuer in the present case says she is, and as most women so deserted are, it would be impossible, or at all events very difficult, for them to procure professional assistance and to get persons to advance the necessary outlay in carrying on a lawsuit, if at the end of the day, when victory has been obtained, the decree for expenses goes out against a man who is resident in a foreign land, to which the diligence of Scotch law does not reach. A very troublesome and expensive defence may be set up in this way by a foreigner, the penalties of which in the imposition of expenses he cannot be made to suffer, and this is a state of things which it is desirable, if it can be done consistently with legal principle, to avoid.

“No doubt it may be said that it is hard that a man whose status is impeached, as it is by an action of divorce, should not be allowed to defend himself without coming under the burden of finding caution for his wife's expenses; but it is still more hard that his wife should be deprived of her remedy of divorce by reason of her inability through his desertion to provide for the necessary legal expenses attendant on such an action.”

The defender reclaimed. After his counsel had stated the case, the Court called on the pursuer's counsel, who argued that the general rule was that a foreigner resident abroad must sist a mandatory— Sandilands v. Sandilands, May 31, 1848, 10 D. 1091. With reference to the plea of no jurisdiction, there was jurisdiction here, for a slighter amount of residence in and connection with Scotland would constitute a matrimonial domicile where the husband had had no fixed residence anywhere, than in cases where he had. He had had in fact more connection with Aberdeen than with any other place.

At advising—